Kelley v. Goldschmidt

HART, J.

The appeal in this action is prosecuted by defendants H. IT. Goldschmidt and Goldschmidt Bros, from an order made by the superior court in and for the county of Los Angeles, on August 7, 1917, denying a motion made by said defendants to discharge an attachment theretofore levied upon certain personal property belonging to them.

The complaint was filed on the twentieth day of June, 1917, against the above-named defendants and one Milton Kauffman, but, on the sixteenth day of July, 1917, plaintiff caused the action to be dismissed as against said defendant Kauffman. Prom that time on the action was against the guarantors alone and, consequently, upon the contract of guaranty only, and thus the action stood when the notice of the motion to discharge the attachment was given on August 1, 1917.

The complaint was in two counts, in the first of which it was alleged that, on or about the seventeenth day of August, 1915, at the" city of Los Angeles,- defendant Kauffman, for a valuable consideration, executed and delivered to Hellman Commercial Trust & Savings Bank, a corporation (hereinafter called the bank), his promissory note in writing for the sum of nineteen thousand dollars, payable on demand; that thereafter, for a valuable consideration, said bank assigned and transferred the said note to plaintiff; that the sum of five thousand dollars was paid upon said note, and that at the date of the commencement of the action there was due thereon the sum of fourteen thousand dollars.

In the second count of the complaint it was alleged that, contemporaneously with the making of said promissory note and as a part of the same transaction, the defendants Goldschmidt delivered to said bank their written contract of guaranty, indorsed upon the back of said note, by which they guaranteed “the payment of the within note or any renewal or extension thereof, and all expenses of collection thereof,” and also agreed to pay reasonable attorney’s fees in case suit was brought to enforce the guaranty. The

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assignment of said guaranty to plaintiff was alleged, as well as demand upon defendants, on the seventeenth day of November, 1916, that said note be paid, and one thousand four hundred dollars was asserted to be a reasonable fee to be paid plaintiff’s attorneys.